ReactS : Advertising Lawyers & Attorneys : Reed Smith Law Firm : Marketing Regulations, Product Placement

During the 2012 Christmas season, ASDA and Morrisons ran ads depicting mothers running errands, bustling around kitchens, preparing food, wrapping presents and attending Christmas plays. Complaints were made to the ASA on the basis that they were offensive and sexist because they reinforced outdated stereotypes of men and women in the home.

Morrisons responded to these claims by stating that its ad was a socially aware and thought provoking glimpse of the reality that faces many working mothers who bear the brunt of responsibility for Christmas preparations, and a "subtle and sensitive critique" which did not encourage discriminatory behaviour or treatment. ASDA acknowledges that its ad did not reflect universal experience, but pointed to its extensive customer research showing almost 2,000 mothers agreed with this depiction. ASDA’s ad also received complaints on the grounds that it could cause offence to single fathers, men who are in a primary domestic role and children who have lost their mothers, which appeared to be evidenced by the VO "behind every Christmas, there’s mum, and behind every mum, there’s ASDA".

The ASA considered the ads under Rules 4.1 (ads must contain nothing that could cause physical, mental, moral or social harm to persons under the age of 18), 4.2 (ads must not cause serious and widespread offence against generally accepted, moral and cultural standards), and 4.8 (ads must not condone or encourage harmful discriminatory behaviour or treatment), but the complaints were not upheld.

Perhaps most interesting about these adjudications is the ASA’s finding that the ASDA ad, which received over 600 complaints from members of the public, was not deemed to have caused "serious and widespread offence". The ASA accepted that such depictions were not indicative of everybody’s Christmas experience but they did represent the experiences of certain of the supermarkets’ customer demographics.

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Two toothpaste manufacturers have recently felt the bite of the ASA. Purity Laboratories Ltd claimed in a magazine advertisement that its products produced "whiter teeth in 1 minute" and attempted to substantiate this claim on its website by stating that " a study conducted at Bristol University Dental School proved that Beverly Hills Formula toothpaste can remove over 90% of staining in just 1 minute." When the ASA put Purity Laboratories Ltd to proof on this, it claimed that an inconsistency in spelling at the laboratory meant that not all product names stated in the test results accurately matched the names of its products and that it was awaiting further data. The ASA therefore held that this was misleading advertising under rule 3.1 of the CAP Code and the ads must not appear again in their current form.

Similarly Church & Dwight UK Ltd claimed that its toothpaste could produce "3 shades whiter clinically proven" and relied on a study which they had conducted by a leading dental research institute. When the ASA referred the study to an independent expert, it found that it was not "sufficiently robust" and even had a significant proportion of subjects who experienced darker teeth or no change at all. As a result of this the ASA found the claim to be misleading (breaching CAP Code rule 3.1) and incapable of substantiation (breaching CAP Code rule 3.9). As a result the ads cannot appear again in their current form.

Conversely Procter & Gamble were vindicated by the ASA when its ad featuring TV personality, Holly Willoughby, was investigated following claims that P&G had enhanced the whiteness of Miss Willoughby’s teeth in post-production. The ad was investigated for suspected breaches of CAP Code rule 3.1 (misleading), rule 3.9 (substantiation )and rule 3.12 (exaggeration) but was cleared by the ASA when Clearcast confirmed that P&G had not enhanced the film nor whitened Miss Willoughby’s teeth. P&G even produced a letter from Miss Willoughby stating that she had been using the toothpaste for a period prior to filming and had noticed a significant difference. On this basis the ad was cleared of any breach. There are two lessons to learn from these cases: i) always ensure that your advertised claims are backed up with solid independent evidence and ii) yes, Holly Willoughby’s teeth really are that white! 

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The Advertising Standard Authority's remit will shortly cover Online Behavioural Advertising (OBA). The Committee of Advertising Practice (CAP) has extended the CAP Code to cover this increasingly developed form of targeted advertising with a new series of Rules. OBA involves the collaboration of advertising networks and third parties to deliver customised advertising based upon deep analysis of a user’s web browsing activity. From 4 February 2013, the ASA will require advertisers and other ‘third parties’ to provide notice to web users, in or around online display advertisements that OBA is taking place. This notice must then link to a mechanism whereby users can opt out of receiving OBA from that third party. The third parties themselves must provide a notice on their website that they use data for OBA and the understanding is that most third parties will then link to an industry-wide website whereby users can choose the type of third parties which can target them with advertisements. Not only this but third parties will be required to gain explicit consent from users before using forms of OBA and they will be prohibited from targeting children aged 12 and under. CAP’s rules on OBA do not apply to contextual advertising, web analytics, ad reporting or the use of OBA in rich media, in-stream videos online or on mobile devices but once these regulations begin operating, we may see further extension.

CAP and the ASA have stated that they hope to resolve any breaches of the Code quickly between the parties but failing this the ASA will carry out a formal investigation and publish an adjudication where necessary and so again as soon as these regulations begin to be enforced we may have a better idea of their application and consequence in practice. CAP has published a Help Note on this new development, available here.

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A TV ad for Richmond ham which features a naked man wearing only a cap and eating a ham sandwich, was banned by the ASA at the end of last month, but not for the reasons you might think. The man sang a song declaring his love for Richmond ham which proclaimed that Richmond ham is "Britain's only ham made with 100% natural ingredients." The ad was cleared for broadcast with an ex-kids restriction, which meant it should not be shown in or around programmes made for children. The advert received 371 complaints, five issues were investigated by the ASA and one was upheld. the ASA investigated whether: (i) the nudity in the ad was offensive; (ii) the ad was inappropriate for broadcast at times when children were likely to be watching; (iii) the claim "Britain's only ham made with 100% natural ingredients" was misleading and could be substantiated; (iv) it was misleading to describe the product as "Britain's only ham...", because the company was Irish and the product was made in Ireland; and (v) the claims "made with 100% natural ingredients" and "as nature intended" were misleading and could be substantiated.

Surprisingly, it was issue number (iv) that turned out to be the reason for the ASA clamping down on Richmond ham. In relation to the nudity, which drew the most public complaints, the ASA stated that it was "not sexual in tone and we concluded that it was unlikely to cause serious or widespread offence". Regarding the claim that the ham was British, the ASA upheld the complaint, stating that the ham was likely to be interpreted by consumers watching the ad as a product of British origin, when this was not the case. Therefore, the claim was held to be misleading and the advert was deemed to breach BCAP Code rule 3.1 (Misleading advertising).

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Advertisers are using social media platforms such as Twitter to reach an unprecedented number of people cheaply and instantaneously. With some celebrities enjoying a following of over a million fans, advertisers have found a new way to maximise the traditional celebrity endorsement model and extend the reach and exposure of their promoted goods and services to new levels.

However, this year the ASA has already heard two complaints relating to product endorsement via Twitter. This is clearly going to be a significant issue going forward and it is important for advertisers and their agencies to be aware of the legal and regulatory pitfalls. Check out our new Ad Guide for more information and guidance on using celebrity endorsements in social media.

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Last year, Rimmel London was criticised for its “1-2-3 Looks Mascara” television and magazine ads when the Advertising Standards Authority deemed in its adjudication that the use of lash inserts on model Georgia Jagger exaggerated the effect achievable from the use of the product alone and the disclaimer “Shot with last inserts” was insufficiently clear in providing information.

In response to similar complaints about use of eyelash inserts, hair extensions and airbrushing in cosmetic advertising the Committee of Advertising Practice and the Broadcast Committee of Advertising Practice have published new guidance designed to educate advertisers in the cosmetics sector and prevent misleading and exaggerated claims about the effect a product is capable of achieving.

The CAP Help Note, "The Use Of Production Techniques in Cosmetics Advertising", draws a distinction between the use of obvious exaggeration that is not likely to be taken literally, the effect actually achievable by the product, and the exaggeration which consumers interpret as begin indicative of a product’s capabilities. Consequently, forthcoming ads for mascara may use eyelash inserts to fill in natural gaps in the lash line but not to create a lengthening or volumising effect beyond what can be achieved by the mascara on natural lashes.

Post-production airbrushing will also be scruintised to avoid misleading consumers on the apparent performance of the product, and advertisers may no longer be able to remove or reduce the appearance of lines and wrinkles, add highlights and shine or remove ‘fly-away’ hair. The Help Note further reiterates the importance of advertisers continuing to document and retain appropriate evidence to demonstrate any research, styling and re-touching, as required under the Codes, and also clarifies that the use of qualifications and disclaimers will not excuse otherwise disallowed activities. Disclaimers and qualifying statements should only be used for adding clarity and must be legible and appropriately placed. This comes at a time when the cosmetic industry is possibly already turning a marketing corner. In the US last month, French cosmetics brand Make Up For Ever launched the world’s first unretouched make-up ad campaign and in the UK both Maybelline’s and Maxfactor’s TV ads have taken a deliberate move towards a more natural setting. As our industry becomes more and more transparent, it remains to be seen whether this new guidance will initiate a decline in highly stylised ad campaigns in favour for the natural look. Please contact a member of the ReACTS team for further information and assistance with your advertising.

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The wait is finally over... Hot on the heels of yesterday's launch of product placement onto UK television, today marks another dawn of a new age in UK advertising. As of today, Tuesday 1st March 2011, the regulatory remit of the ASA is extended to cover online non-paid for space and pages under the control of advertisers. This means that the CAP Code for non-broadcast advertising, which previously only applied, in an online context, to advertising in paid-for space, such as pop-ups and banner ads, will now regulate promotional activities on companies' own websites and on sites such as a brand's official Facebook page, Twitter feed or YouTube channel.

It remains to be seen how the ASA will manage, if at all, to police its new regime, considering the enormity of this task and the limited funding available. But the controversial new sanctions it has the power to impose on infringing advertisers should not be sniffed at.  

Our own Marina Palomba shares her thoughts on this groundbreaking new development in MediaWeek today.

Please see our Ad Guide for further information about how this will affect our industry, or contact a member of the ReACTS team.

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 Advertisers have been given the green light to continue to use the name of products they give away as prizes in promotions, without needing the permission of the brand/product owner, following a recent controversial adjudication by the ASA

The ASA disagreed and found in favour of Bodyform in all respects. Clauses 7.1 (Truthfulness),14.7 (Testimonials and Endorsements) and 20.1-20.2 (Denigration) of the CAP Code were considered, but the ASA ruled there had been no breach. It was decided that the adverts were not likely to discredit the underwear brand or company and that "readers would understand…that [Stella McCartney] underwear was a product of value and a desirable prize." The ASA also commented that the CAP Code does not require an advertiser to get permission from a brand before referring to a brand. Is it time this requirement was added? Or should luxury brands be grateful with the free advertising in any context? What’s next? Toilet cleaning products offering luxury branded jewellery as prizes? Could coupling a particular product with a luxury brand in an ad ever be deemed denigratory to the luxury brand? Watch this space!  

Some believe this decision is contrary to the ECJ ruling in Copad SA v Dior (Case C-59/08, 23 April 2009), where a "trademark's prestige" and "the aura of luxury" were found to be "essential" to brand protection. Stella McCartney Limited challenged the adverts for a competition being run by the makers of female sanitary products, Bodyform (SCA Hygiene Products UK). The ads (running in magazines, on packaging and on line) gave the reader the chance to win £100 worth of Stella McCartney underwear. Stella McCartney Ltd argued that the ads were denigratory, misleading by suggesting an endorsement of the product by the underwear brand, took unfair advantage of the brand, and did not make it clear that the brand had no association with Bodyform.

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In the same week that the Pope visited the UK, the ASA banned an ad it deemed could be offensive to some Roman Catholics.  The ad, for Antonio Federici ice-cream, which ran in Grazia and The Lady magazines  earlier this year, featured an obviously pregnant nun eating Antonio Federici ice-cream alongside the words "Immaculately conceived". The strap line for the campaign was "Ice-cream is our religion". The ASA received ten complaints from readers of the magazines claiming that the ad was offensive to Christians and in particular to Catholics. In its adjudication, the ASA said that the ad breached old CAP Code s.5.1 (Decency), which states that ads "should contain nothing that is likely to cause serious or widespread offence. Particular care should be taken to avoid causing offence on the grounds of race, religion, sex, sexual orientation or disability. Compliance with the Code will be judged on the context, medium, audience, product and prevailing standards of decency".

Thus the ASA concluded that the use of such an image as the pregnant  nun to advertise ice-cream, was likely to cause serious offence to readers, particularly practising Catholics. It did not matter that the ad was only placed in a small number of publications, and only a relatively small number of complaints were received, the ASA ruled that the potential for causing serious offence in breach of the Code was significant and that the ads should not run again in their current form.

In 2009, the ASA banned a similar series of ads from Antonio Federici  which featured a cavorting priest and nun with the lines "Submit to temptation" and "Kiss temptation".  The ice-cream company appears determined to create controversial ads, regardless of the previous adverse ASA decisions, so one wonders what their next campaign will be like. However most advertisers do not revel in the publicity of adverse adjudications and there is a danger for repeat offenders that they will be required to pre-clear all their ads for a prescribed period in the future.

When using any religious references, images or innueundo, it is always wise to seek advice and to tread carefully. An ad need not actually cause serious and widespread offence to be problematic, the potential to do so may suffice for a negative adjudication. The latest adjudication was investigated under the old CAP Code. As of 1 September 2010, the new CAP Code is in force. Please see our Ad Guide for further information about the changes to the regime.

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The Advertising Standards Authority, ASA, announced on the 1st September 2010 an extension of its regulatory remit, from March 2011, which will give the Regulator jurisdiction over all marketing communications on the Internet including those on corporate websites and social media networks such as Twitter and Facebook, as well as over advergames and user generated content.

This controversial move has been introduced without any public consultation, and includes new serious sanctions for advertisers. Exemptions to the new regulation include "heritage advertising", 'investor relations', and marketing communications promoting "causes and ideas". Nearly all other marketing promotions on-line will need to comply with the CAP Code. Some areas of concern include how the ASA will deal with the fine line between editorial and promotional material; how the extended remit will be adequately funded; how sanctions can be effectively enforced against companies with sites based overseas or indeed against those thousands of smaller on line advertisers who are blissfully unaware and ignorant of the CAP Code and whose advertising can change in seconds in this fast paced media environment.

All this comes into effect on the 1^st March 2011, which does not give businesses long to review their on line promotions and marketing plans. The changes to the CAP Code ironically comes literally days after printed versions of the revised CAP and BCAP Codes were sent out to purchasers, and only a few months after a public consultation, which excluded these latest provisions.

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45% of complaints to the ASA, The Advertising Standards Authority, are about misleading claims.  One latest advertiser to fall foul of the rules, is Louis Vuitton. The ASA upheld complaints that two press ads were misleading. One featured a photograph of a woman stitching the handle of a handbag with the words " A needle, linen thread, beeswax and infinite patience protect each overstitch from humidity and the passage of time. One could say that a Louis Vuitton bag is a collection of details. But with so much attention lavished on every one, should we only call them details?"  

Three complainants complained  the ads misleadingly implied that Louis Vuitton products were made by hand when they are not. The ASA upheld the complaints because there was insufficient evidence to substantiate the implied claims that they were.

Louis Vuitton is one of many advertisers who fail to have prepared  the necessary evidence to prove any implied or explicit claims in advertising.  Why does this matter? Because an adverse ASA adjudication that upholds complaints for misleading can be hugely damaging to brand reputation, and often for fairly small infringements of the advertising codes.

The UK's advertising codes for broadcast and non broadcast advertising are unambiguous:

"Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove all claims, whether direct or implied, that are capable of objective substantiation. Relevant evidence should be sent without delay if requested by the ASA or CAP.  The adequacy of evidence will be judged on whether it supports both the detailed claims and the overall impression created by the marketing communication. " (Clause 3.1 CAP Code)

Often marketers simply get carried away with belief in the brilliance of their products and creatively simplified slogans simply sound better. There is however a genuine risk that exaggerated statements can lead to damaging adverse publicity and with the imminent extension of regulation to promotional messages on the Internet advertisers must think carefully about claims in marketing communications of all types. Other marketers do not take an ASA letter demanding substantiation seriously. This is a mistake as many have discovered. A quiet week in the news means the press will focus on any major brand caught out breaching the Codes. John Reynolds in Campaign, publicises one of many such advertisers in his article about British Gas' efficiency claims. Media Guardian's Mark Sweney will swoop on any important transgressor. Only recently he reported the ASA's decision to ban Eurotunnel email promotion which claimed its service took vehicles to France by train in just 35 minutes and ran "whatever the weather". 

Its not just about brand damage either. Having a press ad or TV commercial banned can mean a massive waste of money. So don't waste a good campaign, an expensive TV commercial or lose pre purchased media space. Know your regulations and have robust evidence to substantiate your claims.

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